On 5 July 2012, the Chief Justice of Australia, Ron French, gave a lecture in the very opulent Australia House on the differences and similarities between human rights protection in Australia and the United Kingdom. It was chaired by the Lord Chief Justice of England and Wales, Lord Judge.
French started his lecture by pointing out the most important difference between the two jurisdictions: Australia has a written constitution, and the United Kingdom does not. He also pointed out that Australia has no bill or charter of rights unlike the Human Rights Act 1998 in the United Kingdom, with him joking that the phrase “she’ll be right, mate” was a pithy way of describing the popular views of how human rights work. However, one of the great similarities and strengths of the two countries is the principle of legality based upon the common law and parliamentary sovereignty. There have been criticisms of Australia as a western democracy for a perceived failure to protect rights adequately, but French argues that there is protection present.
In September 2009, a committee on human rights reported to the Attorney-General of the Commonwealth of Australia on which rights should be better protected and how Australia can achieve that. One option was a statutory charter similar to the Human Rights Act 1998, but there was a concern that such a charter would remove the power and burden from the parliamentarians and place it on the judiciary. Instead, it was decided that education was the key way that rights should be protected, and other existing statutes could be altered to give the judiciary a power to interpret legislation in line with these rights similar to the power under s 3 HRA.
The committee suggested a common law Human Rights Act based upon the HRA in the United Kingdom and its dialogue model, but the Attorney-General said it could be divisive. Instead a human rights framework was created to promote education and to pass an Act of Parliament to form a joint committee on human rights to ensure that Australia complied with seven core human rights treaties. As an example of how this would work, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Teoh claimed that due to his children the Minister should have considered the impact of the Convention on the Rights of the Child (which Australia has ratified) when considering his deportation. That case held that it was correct for Teoh to have a legitimate expectation to be protected by an international treaty that Australia signed, though it was possible for the Minister to depart from his obligations under it.
It was decided that every new Bill was to be accompanied by a human rights statements, and the core treaties were:
- the International Covenant on Civil and Political Rights;
- the International Covenant on Economic, Social and Cultural Rights;
- the Convention on the Elimination of All Forms of Racial Discrimination;
- the Convention on the Elimination of All Forms of Discrimination Against Women;
- the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment;
- the Convention on the Rights of the Child; and
- the Convention on the Rights of Persons with Disabilities.
There was also public discussion of putting discrimination law under common law and statute into one statute, as there are many that operate at both state and federal level. However, it was decided that this was unnecessary as s 109 of the Constitution can be used to prevent their operation under commonwealth law. In Mabo and Other v State of Queensland (1992) 175 CLR 1, a statute extinguishing the claim of Aboriginal groups to land was held to be inoperative under s 109 for grounds of discrimination. A further case where limiting fertility treatment in Victoria to married women only was also rendered inoperative.
Most territories have their own discrimination laws, some even in charter form. However, the Australian Constitution has no bill of rights to enshrine these laws, but it does contain protection for them. To find them, we need to look at the broader context, and the evolution of Australia as a country.
All the states acted as independent territories with their own supreme courts, but decided to federate in the 1890s, which required a draft constitution, as the colonies were given authority by imperial statute. The-then Chief Justice of Tasmania turned to the US Constitution as an example. Some representatives were not keen on the provisions in this, as for them some forms of discrimination were desired. However, the rights to trial by jury, free exercise of religion and the protection of a state’s residents from other states on the basis of their residence form part of the Constitution. There are other rights expressed within the document, as well as those more subtle.
Chapter 1of the Constitution sets up the law making power for the Commonwealth and the following chapter created the executive. Chapter 3 set up the judiciary: the High Court of Australia, federal courts, and the power to delegate federal authority to other courts, namely the supreme courts for each state. The High Court however remains the final appellate court for all. The Constitution contains a clear separation of powers, which is not found at state level. However, the independence of the supreme courts is now guaranteed and entrenched as a result of the Constitution.
Other express rights include as the prevention of civil conscription, the acquisition of property of just terms, and the power for the High Court to review the actions of an officer of the Commonwealth, an expansion to the right to trial by jury which requires a unanimous decision of a jury for conviction of a Commonwealth offence, and free movement and trade between states. A restraint of the practice of legal professionals between various states has also been removed.
In this way, the rights may be seen as legal and procedural guarantees as well as rights similar to those in our HRA. This also include the Kable doctrine, which prevents state courts from acting in a way that is repugnant to federal courts. This can also prevent the state judiciary from being bound by state legislation, such as the restrictions placed on a Magistrates Court to follow prescriptive legislative powers. The supreme courts cannot be deprived of their supervisory jurisdiction of the executive under the constitution and case law.
Other rights that have emerged from case law include the right of Australian prisoners to vote, to change election registration details after an election is called, and an implied freedom of political communication. The judiciary have also been known to take more direct action, as a book on shoplifting was denied a classification and therefore could not be published; however, while the appeal was dismissed, the judge as part of his reasoning attached the entire book to his judgment.
French noted that the United Kingdom does not have such cases, but our common law rights have the same constitutional power. The principle of legality ensures that construction of the law must follow the least infringing meaning. These rights and principles have their own importance and weight which is free from interference in statute. Australian examples include a provision against annoying Catholic pilgrims during World Youth Day as part of a papal visit could not be construed to prohibit all activity, and the reverse onus of the legal burden of proof falling on someone in possession of drugs could not be used to support the legal burden and evidential burden of trafficking offences.
French’s final point was this: the roles of the courts and the Constitution is key but is based upon the people working in their framework. However good a constitution is, it won’t work properly if there are bad people working in it, but however bad a constitution is, it will work if there are good people working in it.
The talk was hosted by the Anglo-Australian Lawyers Society and the Constitutional and Administrative Bar Association.